Wednesday, August 26, 2009

Beware of discrimination risks when rehiring ex-employees

As the recession continues to show signs of ending, companies that had previously laid off employees will need to re-staff. According to, a recent Department of Labor study finds that 38% of employers intend to recall cut workers. While a laid-off non-union employee has no right to be recalled or transferred into an open position, rehiring is not without legal risk. A recent 6th Circuit decision – Owens v. Wellmont, Inc. (6th Cir. 8/18/09) [PDF] – illustrates that employers need to pay as much attention to who is not recalled at to who is recalled.

After Wellmont eliminated Owens’s position in a reduction-in-force, she asked management about job openings in other departments. Wellmont hired younger candidates for those positions. The appellate court was bothered by the fact that management did not treat Owens’s discussions with management as formal applications for the open positions:

Owens did more than make a generalized expression of interest in working for Wellmont—Owens specifically informed Adams that Owens was interested in a position that was currently open.

As long as an employee makes a reasonable attempt to demonstrate to the employer an interest in the job, that employee can plead a discriminatory hiring claim if the job goes to someone else.

The lesson for employers is that if you are recalling RIF’ed employees, don’t discount someone merely because he or she did not make a formal application. If someone expressed interest in returning, it may be enough to trigger your responsibility to consider them for recall, or cause potential discrimination liability for failing to do so.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or